ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 10.1
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of the 31st day of December,
2008, by and between M&W FIBERGLASS, LLC, a Wisconsin limited liability
company (“M&W”), ADVANCED FIBERGLASS TECHNOLOGIES, INC., a Wisconsin
corporation (“AFT”), and XXXXX X. XXXXX AND XXXXXXXX XXXXX (the “Mancls”) and
NEKOOSA PORT XXXXXXX STATE BANK (the “Original Purchaser”) and NEKOOSA PORT
XXXXXXX STATE BANK (the “Trustee”).
WHEREAS,
AFT proposes to buy substantially all of the assets owned by M&W and assume
all rights and responsibilities of M&W under (i) that certain Bond Agreement
dated as of February 28, 2007 (the “Bond Agreement”) by and among the City of
Wisconsin Rapids, Wisconsin (the “Issuer”), M&W, AFT, the Mancls, the
Trustee and the Original Purchaser pursuant to which the Issuer issued its
$4,000,000 Industrial Development Revenue Bonds, Series 2007A, 2007B and 2007C
(Advanced Fiberglass Technologies Project) (the “Bonds”), (ii) that certain
Credit Agreement dated as of February 28, 2007 (the “Credit Agreement”) by and
among AFT, M&W, the Mancls and Original Purchaser, and (iii) all of the
documents and agreements relating thereto; and
WHEREAS,
Section 6.11 of the Bond Agreement allows M&W to dispose of all or
substantially all of its assets and thereafter be released from its obligations
under the Bond Agreement and the Bonds if: (i) the resulting, surviving or
transferee legal entity, as the case may be, is a legal entity established and
duly existing under the laws of one of the states of the United States of
America; (ii) such resulting, surviving or transferee legal entity expressly
assumes in writing all of the obligations of M&W contained in the Bond
Agreement and the Security Documents (as such term is defined in the Bond
Agreement); (iii) the Original Purchaser while it remains a Bondowner shall have
consented in writing to such transaction; and (iv) the resulting, surviving or
transferee entity shall have net assets immediately following such transaction
at least equal to or greater than that of M&W immediately prior to such
transaction;
WHEREAS,
M&W is a party to the Bond Agreement, the Credit Agreement and those
agreements described in Schedule 1 attached
hereto (collectively, the “Assumed Contracts”); and
WHEREAS,
M&W wishes to assign its interest in the Assumed Contracts to AFT, and AFT
wishes to accept such assignment and to assume all of M&W’s obligations and
liabilities under the Assumed Contracts; and
WHEREAS,
the Original Purchaser has consented pursuant to Section 6.11 of the Bond
Agreement to the transfer of substantially all of the assets of M&W to AFT
and the assumption of the obligations of M&W by AFT under the Assumed
Contracts, on the terms set forth herein,
WHEREAS,
the Original Purchaser has also agreed, on the terms set forth herein, to
release Fiberglass Piping & Fitting Company, a Wisconsin corporation
(“Fiberglass Piping & Fitting”) under its Unlimited Continuing Guaranty
dated as of February 28, 2007 in favor of the Original Purchaser and the Trustee
given as security for the Obligations (defined therein) (the
“Guaranty”);
NOW
THEREFORE, in consideration of the recitals and of the consummation of the
transactions contemplated in this Assignment and Assumption Agreement and for
other good and
valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
l. Assignment. M&W
hereby assigns to AFT all of its right, title and interest in and to the Assumed
Contracts.
2. Assumption. AFT
hereby accepts the foregoing assignment and assumes and agrees to pay, perform
in accordance with, and be bound by all of the covenants, terms and obligations
contained in the Assumed Contracts arising from and after the date
hereof. On and after the date hereof, all references in the Assumed
Contracts to “Borrower”, “Debtor,” “Grantor,” “Mortgagor” or words of similar
import shall be deemed to refer to AFT and all representations, warranties,
covenants, grants of security interests or liens, and other agreements made
therein are hereby made by AFT.
3. Representation and Warranty
of M&W. M&W represents and warrants to AFT that at the
time of the execution and delivery of this Assignment and Assumption Agreement,
M&W’s right, title and interest in and to the Assumed Contracts being
assigned to AFT hereunder are free and clear of all liens, encumbrances, claims,
restrictions, pledges, security interests or impositions.
4. Representations and
Warranties of AFT. AFT represents and warrants to the Original
Purchaser that each of the representations and warranties made by it under the
Assumed Contracts is true and correct as of the date hereof and are incorporated
herein by reference. AFT further represents that: (i) it is a legal
entity established and duly existing under the laws of one of the states of the
United States of America; and (ii) it shall have net assets immediately
following such transaction at least equal to or greater than that of M&W
immediately prior to such transaction.
5. Conditions Precedent to
Effectiveness of Agreement. This Assignment and Assumption
Agreement shall not be effective until Original Purchaser shall have received
the following documents, all in form and substance satisfactory to Original
Purchaser and executed as appropriate:
a. Fully
executed (and notarized) originals of this Assignment and Assumption Agreement
and Memorandum of Assignment and Assignment Agreement by each of the parties
hereto;
b. A
title commitment issued by a title company acceptable to Original Purchaser, at
the AFT’s expense, with such title binder constituting a commitment by such
title company to issue an ALTA Loan Policy in favor of the Original Purchaser,
as beneficiary, or an Assumption Agreement Endorsement to an existing policy in
favor of the Original Purchaser, under the Mortgage (as defined under the Credit
Agreement) that specifically insures that the Mortgage is a first lien upon the
mortgaged property subject only to the Permitted Liens (as defined under the
Credit Agreement) and payment of all fees relating to same;
c. Copies
of certificates or other evidence satisfactory to the Original Purchaser to the
effect that the Original Purchaser is the mortgagee loss payee and additional
insured under the policies of insurance required by Original Purchaser under the
Assumed Contracts, including hazard insurance and liability policies, which
policies shall be in amounts and with insurers acceptable to Original
Purchaser.
d. A
Certificate of Status for AFT issued by the State of Wisconsin; a certified copy
of the AFT’s articles of incorporation certified by the Wisconsin Department of
Financial Institutions on February 23, 2007 and certified by an officer of AFT
that there have been no changes since such date; a true and correct copy of the
AFT’s bylaws; a certified copy of the directors’ resolutions authorizing the
transactions contemplated by this Assignment and Assumption Agreement; and a
certificate of the secretary of AFT certifying the authenticity of the articles
of incorporation and by laws and adoption of the authorizing resolutions and
setting forth the true and correct signatures of the officers of AFT and their
respective offices within AFT.
e. An
opinion of counsel to the AFT, in form attached hereto as Exhibit
A.
f. Payment
of all fees and costs of counsel to the Original Purchaser; payment of all costs
of recording, title charges.
g. Evidence
of conveyance of assets from M&W to AFT acceptable to Original
Purchaser.
h. Such
other information as the Original Purchaser shall reasonably
require.
6. Covenants of
AFT. In addition to the covenants, undertakings and agreements
set forth in the Assumed Contracts, AFT covenants that it will do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged and
delivered, such instruments supplemental hereto and such further acts,
instruments and transfers as the Original Purchaser may reasonably require for
the better assuring, transferring, conveying, pledging, assigning and confirming
unto the Original Purchaser or Trustee all the security and rights intended to
be assigned or pledged hereby or under the Assumed Contracts.
7. Release of
M&W. Upon effectiveness of this Assignment and Assumption
Agreement, including satisfaction the conditions set forth in Section 5, M&W
shall be and hereby is released of all obligations which may arise under the
Assumed Contracts from and after the date of the date hereof.
8. Release of Fiberglass Piping
& Fitting. Upon effectiveness of this Assignment and
Assumption Agreement, including satisfaction the conditions set forth in Section
5, Fiberglass Piping & Fitting shall be and hereby is released of all of its
obligations which may arise under its Guaranty from and after the date of the
date hereof.
9. Counterparts. This
Assignment and Assumption Agreement may be executed in multiple counterparts,
all of which shall constitute one and the same instrument and each of which
shall be deemed to be an original.
10. Costs and
Expenses. AFT agrees to pay the Original Purchaser’s costs and
expenses in connection with preparation and execution of this Amendment, and the
documents related thereto, including without limitation, attorneys’
fees.
[Signature
Page Follows]
WHD\6198964.3
IN
WITNESS WHEREOF, the parties have executed this Assignment and Assumption
Agreement effective as of the date first written above.
| M&W: | AFT: | ||
| M&W FIBERGLASS, LLC, a Wisconsin limited liability company | ADVANCED FIBERGLASS TECHNOLOGIES, INC., | ||
| a Wisconsin corporation | |||
|
|
|
||
|
Name
|
Name
|
||
|
Title
|
Title
|
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| ORIGINAL PURCHASER: | |||
| MANCLS: | NEKOOSA PORT XXXXXXX STATE BANK, | ||
| as Original Purchaser on behalf of itself and its participants | |||
| XXXXX X. XXXXX | |||
| Name: | |||
| Title: | |||
| XXXXXXXX XXXXX | |||
| ACKNOWLEDGEMENT | |||
| NEKOOSA PORT XXXXXXX STATE BANK, as Trustee | |||
| Name: | |||
| Title: |
[Signature
Page of Assignment and Assumption Agreement]
City of
Wisconsin Rapids, Wisconsin
Industrial
Development Revenue Bonds, Series 2007A, 2007B and 2007C
(Advanced
Fiberglass Technologies Project)
WHD\6198964.3
SCHEDULE
1
ASSUMED
CONTRACTS
1. Bond
Agreement dated as of February 28, 2007 by and among the City of Wisconsin
Rapids, Wisconsin (the “Issuer”), M&W, AFT, the Mancls, Nekoosa Port Xxxxxxx
State Bank (the “Trustee”) and Nekoosa Port Xxxxxxx State Bank (the “Original
Purchaser”);
2. Promissory
Note (Series 2007A) executed by M&W, AFT and the Mancls in the original
principal amount of $3,000,000;
3. Promissory
Note (Series 2007B) executed by M&W, AFT and the Mancls in the original
principal amount of $500,000;
4. Promissory
Note (Series 2007C) executed by M&W, AFT and the Mancls in the original
principal amount of $500,000;
5. Credit
Agreement dated as of February 28, 2007 by and between M&W, AFT, the Mancls
and the Original Purchaser (the “Credit Agreement”);
6. Construction
Mortgage, Assignment of Leases and Rents, and Fixture Filing, dated as of
February 28, 2007 by M&W in favor of the Original Purchaser and the Trustee
and recorded February 28, 2007 in the Register of Deeds for Wood County as
Document No. 2007R01980;
7. Security
Agreement dated as of February 28, 2007 by M&W and AFT, in favor of the
Trustee and the Original Purchaser;
8. Each
of the other Bond Documents as defined under the Credit Agreement;
and
9. Each
of the other Related Documents as defined under the Credit
Agreement.
